Are all bills with new taxes already procedurally doomed from ever receiving a Senate vote? And has the Senate already nullified any attempt by Gov. Jay Inslee to create a carbon emissions charge or a capital gains tax — solely by rearranging its own internal rules?
Those are key questions now facing the Washington Legislature because the Senate installed a two-thirds majority requirement Monday to pass any new taxes without a public referendum. "This is a very bad precedent that we're setting," said Sen. David Frockt, D-Seattle, who led the Democrats on the floor debate over the issue.
The new procedure is the brainchild of Sens. Doug Ericksen, R-Ferndale, and Mike Baumgartner, R-Spokane. "By requiring broad support for taxes in the Legislature, we ensure that taxes will not be our first resort," Baumgartner said. "While I wish we could have applied this rule to all taxes that might come before the Legislature this session, applying it to new taxes is still very significant. This will make it much more difficult for Gov. Jay Inslee to pass his misguided proposals for cap-and-trade and a new capital gains tax."
Right now, the Senate needs a savvy jungle guide to create any new taxes — or to map out a 2015-2017 state-operating budget with any new taxes. And a situation has been created in which the House Democrats and the Senate Republicans could spend months writing budgets based on very different premises about how many votes will be needed to pass their respective chambers. That could provide further complications in reaching a budget agreement, something that was already expected to be a long and difficult process.
With a 26-23 party line vote Monday, the Senate adopted new procedural rules that now say:
- Any new taxes — such as capital gains and maybe Inslee's carbon emissions charges — would have to pass an internal Senate procedural vote with a two-thirds majority. The Senate Majority Coalition Caucus of 25 Republicans and one Democrat argue Senate rules on moving bills to the floor aren't covered by the Washington Supreme Court's 2013 ruling that it is unconstitutional to require a two-thirds majority to pass tax increases. The new rules have one exception to requiring a two-thirds majority for a new tax. A simple majority can be used if the bill with a new tax includes sending it to a public referendum in the following November.
- Existing taxes can be increased with a simple majority. That means a gas tax increase can be passed by a simple majority, while a new capital gains tax could not be. A question is whether Inslee's proposal to charge polluters for the amounts of carbon emissions they emit is technically a tax. Inslee has constantly stepped away from calling this proposal a "tax," opting to describe it as a "charge." Under Inslee's plan, the 130 largest polluters would bid on allocations of carbon emissions that they would be allowed to emit. "It looks like a tax, and it quacks like a tax," Baumgartner said.
- It will still take just a simple majority to close tax breaks.
The Senate Democrats argued that the two-thirds procedural rule on new taxes is unconstitutional and an internal rule cannot trump a Supreme Court decision. The majority coalition countered that the Supreme Court ruling did not cover internal procedures.
The man who is to decide such a dispute within the Senate is Lt. Gov. Brad Owen. He said it is standard Senate procedure for him not to decide such a matter until an actual bill involving that dispute hits the Senate floor, which is known as "the third reading." The two-thirds-majority procedural votes are to occur at the "second reading" stage.
Owen also said that he prefers to wait to make rulings if and when procedural issues are raised at the "third reading" stage, which is the final floor vote. So, any attempt to overturn the rule could be caught in a Catch-22 position.
Baumgartner said the Senate could suspend the two-thirds majority needed for new taxes — if needed — by a simple majority vote to overturn that requirement in the rules. That potential suspension of the two-thirds rule might come into play late in the session during the end-game horse-trading on the budget in the final days of the Legislature in April.
